Firearms - Review of Registrar's decision - Refusal of application for firearms license - Public Interest

Firearms - Review of Registrar's decision - Refusal of application for firearms license - Unauthorised purpose

South Australian Civil and Administrative Act 2013 ss 34, 35

South Australian Civil and Administrative Rules 2015 r 35, Part 8

Firearms Act 2015 ss 5, 7, 12, 15

Firearms Regulations 2017 Schedule 2

Traill v McRae [2002] FCAFC 235

Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; [1955] 93 CLR 127

Davies v Registrar of Firearms [2005] SASC 149

Police v Losapio [2007] SASC 112

Respondent: Mr Sam Withers, Crown Solicitor's Office

1. Mr Adam Breeding brought an application for review against a decision of Superintendent Hand, a delegate of the Registrar of Firearms, to refuse his application for a firearms licence for the purposes of target shooting and hunting, on the grounds of a lack of fitness and propriety.
2. The parties made submissions before the Tribunal on 21 September 2017 and I reserved my decision to consider the written and oral submissions and evidence. For the reasons that follow, the correct and preferable decision is that the refusal be upheld.

1. A person who wishes to challenge a decision made by the Registrar of Firearms (or his delegate) to refuse a firearms licence application may apply to the South Australian Civil and Administrative Tribunal (SACAT) under s 47 of the Firearms Act 2015 and s 34 of the SACAT Act 2013 for a review of the decision.
2. The review is conducted by way of a rehearing in which the Tribunal examines the evidence that was before the original decision-maker and any further evidence that the Tribunal decides to receive.
3. The original decision was made on 12 June 2017 under the Firearms Act 1977 ("the 1977 Act"). At that date, an applicant had a right of review to a Firearms Review Committee, and the decision-maker's letter informed Mr Breeding of that right[1]. Before the right was exercised by Mr Breeding, the Firearms Act 2015 ("the 2015 Act") came into operation on 1 July 2017. The transitional provisions in the 2015 Act dictate how such matters are to be dealt with. Clause 43(2) of the transitional provisions provides that an applicant with a right of review in relation to a decision made under the 1977 Act, may exercise that right under the 2015 Act as if the 2015 Act had been in operation when the right arose. On that basis, Mr Breeding's right is exercised by seeking a review before the Tribunal, which he has done by bringing an application to SACAT dated 7 July 2017.
4. Mr Breeding's review is also to be decided by reference to the eligibility criteria as set out in the 2015 Act. It is evident from the nature of the review under the SACAT Act, the scheme of the 2015 Act including its objects and its protective character, and the transitional provisions within the 2015 Act (including the limits thereof), that the 2015 Act is to be read as requiring the Tribunal to determine matters based on the eligibility criteria as at the date of the hearing before the Tribunal and not as at the date of the application for a licence or the decision granting or refusing a licence.[2]
5. Accordingly, I proceed on the basis that I have jurisdiction to hear this review and that the 2015 Act governs Mr Breeding's eligibility for a firearms licence.

1. In accordance with the requirements of s 34 of the SACAT Act, I must make the correct and preferable decision, but in so doing I must have regard to and give appropriate weight to the decision of the delegate of the Registrar of Firearms as the original decision-maker. I must examine what was before him, and I have taken some further evidence, to assist in reaching a decision.
2. The principles and objects of the 2015 Act include, relevantly to this matter, "to confirm firearm possession and use as a privilege that is conditional on the overriding need to ensure public safety" and "to minimise the risk of persons causing injury or harm (including psychological harm) to themselves or others by the use or threatened use of firearms".

1. Licences are issued for the use of certain types of firearms, described in s 5 of the 2015 Act, and for certain uses, described in s 12 and the regulations. Possession and use of firearms that is not authorised under a licence is an offence unless it is excluded from the operation of the Act.
2. An application for a firearms licence is made to the Registrar of Firearms, an office held by the Commissioner of Police. The functions and powers may be delegated, and it was uncontested in this matter that the relevant functions and powers had been delegated to Superintendent Hand ("the Delegate").
3. A licence application may only be refused if a decision-maker fails to be satisfied of one or more of several grounds set out in s 15. In Mr Breeding's case, the Delegate was not satisfied that he was a fit and proper person, nor that it would be in the public interest to grant the licence.

1. The Tribunal has considered the following documents:

1. Volume of documents collated pursuant to s 35 and Part 8 of the SACAT Rules comprising
   • The decision and application for review.[3]
   • The documents in the Delegate's possession prior to making the decision of 12 June 2017.[4]
   • Five documents (medical evidence) submitted by Mr Breeding.[5]

This volume was submitted in 2 forms. Volume 1 is the documents described above in their unredacted form. This volume has been provided to the Tribunal but not to Mr Breeding, pursuant to s 35 (7) SACAT Act 2013 and Part 8 of the SACAT Rules 2015. Volume 2 is the same set of documents, but with various portions of some documents redacted. Counsel for the Delegate advised the Tribunal that the redactions relate to addresses or names of individuals and the absence of that material would not impede Mr Breeding's ability to put his case to the Tribunal. I agree with this assessment and my decision did not turn on any redacted material.

1. A 43 page bundle of typed documents with various dates in August 2017 prepared by Mr Breeding responding to the Delegate's Volume 2 documents ("the First Bundle"). The First Bundle has been collated into Volume 2 above.
2. A bundle of typed documents with various dates in August 2017 prepared by Mr Breeding containing his responses to the decision of the delegate ("the Second Bundle").
3. A 1 page document signed by David Matarazzo relating to incident 35.
4. A 3 page typed document dated 20 September 2017 from Mr Breeding with the hand-written title "Response to Mr Withers' Outline of Argument" ("the Response to Outline").

The First and Second Bundles are mainly made up of documents that separately respond to the assertions in various police incident reports submitted by the Delegate, event by event. They are in a format that is helpful to the Tribunal in understanding Mr Breeding's version of events in relation to the grounds upon which the Delegate relied on in reaching his decision.

The further evidence received by the Tribunal that was not before the original decision-maker included Mr Breeding's written responses to each of the police incident reports, which he submitted in writing and adopted as his evidence, and his oral answers to questions put to him by the Delegate's counsel and by the Tribunal.

Background facts and history of the application for review

1. Mr Breeding was born in 1981. He lives alone in Evandale in a house rented from his parents. His employment history has included courier driving and storeman duties with extended periods of unemployment between roles.
2. He obtained a firearms licence for class A and B firearms[6] for club use, target shooting, and hunting on 14 November 2005. His evidence was that he enjoyed visiting a friend's property in the hills for recreational shooting.
3. Mr Breeding's firearms licence was suspended between January and July 2009 when the Registrar considered that Mr Breeding suffered a medical condition that would make it unsafe for him to hold a licence, namely an unspecified mental illness. This suspension was triggered by various interactions between Mr Breeding and police. The licence was reinstated some months later when medical evidence obtained did not support a conclusion of mental illness. The licence was suspended again in April 2012 based on an alleged lack of fitness and propriety, relating to the Registrar of Firearms' assessment of Mr Breeding's conduct in further interactions with police. The licence was then cancelled in May 2014 on the grounds that Mr Breeding was not a fit and proper person. Mr Breeding did not appeal that decision though it was made apparent in the hearing before the Tribunal that he did not accept the ground on which it was made. He has not held the licence for five years.
4. Mr Breeding submitted a fresh application for a licence in September 2016, which was refused on 17 January 2017 on the grounds that the Delegate was not satisfied that he was fit and proper person to hold a licence. Rather than appeal that decision, Mr Breeding made a further application for a licence on 9 February 2017. It may be inferred from some of the documents submitted by Mr Breeding that this course of action reflected a desire or need to avoid the cost he perceived to be entailed by an appeal. Following the Delegate's refusal dated 12 June 2017, Mr Breeding brought the current application for review to the Tribunal.
5. Thus the current application has had a somewhat unusual history in that Mr Breeding is challenging a decision to refuse the grant of a licence that had been previously refused. This is relevant to the manner in which the Delegate made the decision that is now the subject of review.

1. Superintendent Hand's decision[7] set out the relevant provisions of the 1977 Act advised Mr Breeding that the grounds relied upon in the decision of a different delegate, made five months earlier, were relied upon again. The decision also relied on events described in the cancellation letter dated 30 May 2014.
2. The events relied upon require re-consideration in this review. However, in the broadest of terms, they cover a history of interactions between Mr Breeding and police and others, the volume and nature of which are outside the usual range of experience of a member of the public.
3. Apart from considering submissions made by Mr Breeding in his application, the Delegate did not consider any event or information between February 2017 and the date of the decision, namely 12 June 2017.
4. The Delegate referred to the events and summarised the submissions made by Mr Breeding and concluded that:
   • - Mr Breeding has 'clearly demonstrated a pattern of behaviour which makes you unsuitable to possess firearms', and
   • - 'possession of firearms by you would jeopardise public safety', and
   • - He is not satisfied that Mr Breeding is a fit and proper person to hold a firearms licence.
5. On each occasion the Registrar or his delegate has considered Mr Breeding's licence eligibility, there has been reference to previous events and findings which can be summarised as follows.
6. On 28 March 2014,[8] the Registrar sent Mr Breeding a "show cause" letter expressing concern that Mr Breeding was not fit to hold a licence following an incident in which Mr Breeding attended at Norwood police station in March 2012 to complain about a member of the public, Mr Silvestri,[9] and an incident a year later when police attended at Mr Breeding's house as part of investigations to identify an alleged "flasher".[10] In the first of these incidents, police alleged that Mr Breeding's complaints about Mr Silvestri involved a possible threat that Mr Silvestri should pull his head in or risk having it shot off with a 12 gauge shot gun. In the second incident, Mr Breeding responded angrily to police's attendance at his home in June 2013 and allegedly handled a bow in a menacing manner and demanded that police leave. Mr Breeding responded to the show cause letter with a five page letter dated 3 April 2014.[11] In it, Mr Breeding set out detailed denials and justifications of the various incidents which had been put to him. On 30 May 2014 the Registrar cancelled his licence.
7. In response to Mr Breeding's application for a licence in December 2016, the Delegate responded with a refusal on 17 January 2017.[12]
8. When Mr Breeding then made a further fresh application in February, the refusal dated 12 June 2017 referred back to the show cause letter, Mr Breeding's response, the cancellation letter of May 2014[13] and all of the matters set out in the 17 January 2017 letter. However, it also refers to other earlier events which took place when Mr Breeding was a minor.
9. It is convenient to list the events taken into account by the Delegate as follows, noting that there are many ways that these events could be described or grouped:
   1. 17 February 1997 - Mr Breeding detained by police and taken to hospital following a domestic dispute with his father - allegations that Mr Breeding wielded a knife
   2. 30 November 1998 - the 'Kung Fu' incident and 22 February 1999 - caution in the Adelaide Children's Court for assault police and disorderly behaviour[14]
   3. 16 November 2002 and 23 April 2003 - convicted and fined Drive with Excess Blood Alcohol following a traffic incident[15]
   4. 26 September 2008 - the North Adelaide incident - police and ambulance attended after Mr Breeding was assaulted by acquaintances[16]
   5. 27 December 2008 - seizure of legal firearms from Mr Breeding's house[17]
   6. 8 January 2009 - suspension of the Mr Breeding's firearms licence on suspected medical unfitness, revoked on 13 July 2010
   7. 29 December 2008 - 30 April 2009 - a large number of phone calls by Mr Breeding to police[18]
   8. 20 April 2009 - allegations that Mr Breeding left offensive messages on SAPOL's communications system leading to him being reported for misuse of a carriage service[19]
   9. 22 March 2010 - his mother's complaint to police and incident at Holden Hill Police Station[20]
   10. 5 September 2011 - the welfare check by police on Mr Breeding at his home[21]
   11. 14 November 2011 - Mr Breeding asked to leave his parents' house[22]
   12. 2 February 2012 - Mr Breeding asked to leave his parents' house[23]
   13. 25 March 2012 - Mr Breeding attended at Norwood Police station to complain about Mr Silvestri[24]
   14. 27 March 2012 - police seizure of a toy gun and Mr Breeding's visits to Norwood Police Station including at night[25]
   15. 28 March 2012 - Mr Breeding attending at Adelaide Police Station regarding the toy gun seizure[26]
   16. 14 April 2012 - service of suspension notice on Mr Breeding
   17. 16 April 2012 - Mr Breeding's 3 phone contacts with Firearms Branch
   18. 20 April 2012 - Mr Breeding attending at Holden Hill Police Station to complain about the seizure of his guns[27]
   19. 23 April 2012 - Mr Breeding attending Adelaide Police Station to complain about the seizure of his guns and provide letter to Firearms Branch[28]
   20. 26 April 2012 - Mr Breeding's attendance on Adelaide Police Station to complain[29]
10. In summary, the events the Delegate relied upon allegedly occurred between February 1997 and December 2014, with the majority of them occurring between September 2011 and November 2014. There have been, it would seem, no relevant interactions between Mr Breeding and police since November 2014 outside the numerous interactions related to the 2014 cancellation, the 2016 application, the 2017 refusal and the current application for review.

Weight to be given to the decision at first instance

1. Section 34(4) of the SACAT Act 2013 provides that the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker.
2. The exchange between Mr Breeding and the Delegate about Mr Breeding's request for a licence has been in writing. The Delegate has relied upon the police's accounts, set out in Police Incident Reports, of Mr Breeding's conduct. Mr Breeding has responded to the grounds by providing his written accounts of the relevant events. In this sense, the Tribunal is in a similar position to the Delegate in forming a view as to where the truth lies as the documents are now before the Tribunal for consideration.
3. The Delegate is well-placed to understand the key objectives of the 2015 Act and, importantly, whether an individual's conduct represents a risk to public safety. Further, the Delegate is well-placed to understand the relationship of the possession of firearms to harm to others, to self, and to law enforcement. The Delegate's analysis led him to the conclusion that Mr Breeding's pattern of behaviour jeopardises public safety[45]. I give significant weight to the role of the Delegate, as a senior police officer specialising in firearms, in making this assessment.
4. Having said that, many of the allegations relied upon have not been tested in court. Mr Breeding denies some of them, and puts a different complexion on others. I have had the benefit of Mr Breeding's version of these events through his written and oral evidence.

1. The Delegate relied heavily on the accounts of various SAPOL officers as recorded in police incident reports and other police records of interactions with Mr Breeding.
2. The information in a police incident report is not equivalent of a plea or a finding by a court. The Tribunal must decide the weight they are to be accorded.
3. Much of the material relied upon by the Delegate relates to interactions between Mr Breeding and various members of SA Police. Police officers are trained in reporting events and make reports for the purposes of their work. The Delegate might properly assume that the reports contain prima facie plausible descriptions of those events.
4. Further, some of the matters proceeded to a court outcome. The Delegate has addressed others by concluding that the totality of the evidence indicates "a pattern of behaviour" involving "disturbances and confrontations with his parents, employers, acquaintances and members of the public" during which Mr Breeding is observed to become "agitated and aggressive, resorting to abusive language, threats, and attempts at physical violence".[46]
5. Some of the conduct has been corroborated by Mr Breeding in that he does not deny that some of the events took place. Rather, he says that certain aspects of the reports are inaccurate or that his actions were provoked by unnecessary and unreasonable attention from police officers.
6. The allegations upon which fitness and propriety is to be determined are to be established on the balance of probabilities.
7. Whilst many of the incidents relate to disputes between police, some of the grounds relied on by the Delegate and which the Tribunal is asked to consider relate to interactions between Mr Breeding and other persons such as his parents, colleagues at a workplace, and a road user that cannot be attributed to over-zealous policing.
8. One example that is illustrative involves an allegation set out in a Police Incident Report that Mr Breeding was abusive to a member of the public who parked legally in a loading zone on The Parade at Norwood in June 2012 (incident 22). Mr Breeding thought she was not entitled to park there or at least that he had greater right to the park, given that he was driving a truck that was delivering goods. According to the report, he yelled abuse and she moved her car a short distance away into a park that became available. The police report states that as well as verbally abusing her, Mr Breeding then attempted to have a nearby ticket inspector issue her with an infringement notice but the inspector refused and pointed out that she had in fact parked legally in the loading zone. According to the report, Mr Breeding then continued to abuse the woman with words that included "you're a fucking liar". When police were taking Mr Breeding's version of events he "could not comprehend that using offensive language is an offence" and agreed that he tried to have the council inspector issue her a ticket and "didn't believe it was fair for people to make false complaints about him".[47]
9. The incident encapsulates much of the Delegate's concerns: Mr Breeding abused a complete stranger without cause in a way such as to cause them sufficient alarm to report the matter to police, then sought to press for the person to be punished for the wrong he perceived that they had done, and continued to deny that he was in fact the wrong-doer. In respect of this matter it is difficult not to conclude, even allowing for a degree of error that may have occurred in the detail of the reporting, that Mr Breeding behaved in a completely unacceptable and frightening way. However, it could not, alone, found a conclusion that he lacks fitness and propriety to hold a firearms licence.
10. Irrespective of whether all of the statements in each of the police incident reports have been established on the balance of probabilities or not, their number and frequency is relevant. Many of the reports have been initiated because of contact made by Mr Breeding to police and these do not corroborate Mr Breeding's account of victimisation and harassment by police. They include incidents 7, 8, 12, 13, 14, 15, 17, 18, 19, 20, 25, 25, 26, 27, 28, 30, 31, 32, 34 and 36 from the list at paragraph 27 of this decision.

1. The suitability of an applicant's character to bear the responsibility of holding a firearms license and to ensure no harm comes to the public as a result of their holding of a license is at the heart of the fitness and propriety scheme.[48] The scheme in the 2015 Act has several components set out in s 7. It is similar to that under the 1977 Act, but the 2015 Act broadens the considerations that are prescribed as relevant to determining a person's fitness and propriety whilst still preserving the decision-maker's right to take a broad range of other factors that he or she may consider relevant to the decision. The new components of the scheme are contained in s 7(4)(b) and s 7(5).
2. Although it does not correspond to the order of the sub-clauses of s 7 it is convenient to deal with:
   • - The matters which, if established, have the result that a person is not fit and proper (7(2));
   • - The matters which assist the decision-maker to find that may be taken not to be a fit and proper person (s 7(3)(d) and then (c), and then s 7(5));
   • - Other matters mandated as relevant (s 7(4)(b));
   • - Other circumstances (s 7(2));
   • - Other grounds relevant to fitness and propriety (s 7(7)).

A person who has a physical or mental illness, condition or disorder, or in relation to whom other circumstances exist, that would make it unsafe for him or her to possess a firearm or ammunition is not a fit and proper person for a purpose under this Act.

1. Setting aside for the issue of "other circumstances", to which I will return later, the Delegate did not rely on any alleged physical or mental illness, condition or disorder to conclude that Mr Breeding is not fit and proper. The medical evidence does not support such a finding, but it has played such an important part of the history of the matter that it requires some consideration.
2. There are two aspects of medical evidence. The first relates to Mr Breeding's mental health. The Delegate does not make any allegation that Mr Breeding suffers from a mental health condition that would result in the conclusion that he is not fit to hold a licence. However, it is relevant to understanding the history of the events that in relation to two[49] of them, he was detained under the Mental Health Act as a result.
3. A report of psychiatrist Dr Patrick Flynn dated 11 February 2009 prepared for the Registrar found no evidence of psychiatric illness nor personality pathology and that he "did not consider that there are grounds to suggest that there would be any risk to himself or other people if he was to have is firearms returned to him and his Firearms Licence reinstated".[50] A report of Dr Chris Branson to the Registrar dated 23 May 2012, found "no evidence of any psychotic symptoms such as hallucinations or delusional ideas. He is a man, by virtue of his particular personality style, who has a very strong sense of perceived injustice, and he is not likely simply to accept this without questioning it. In my opinion, this has become an increasingly contentious issue and has escalated because of continuing police attention, which of course has been caused in part by Mr Breeding's reaction to contact with some police officers."[51] His general practitioner stated in 2014 that there was no medical reason for non-issue of a licence.[52]
4. The other aspect is Mr Breeding's medical condition of pernicious anaemia. It is a physical condition that Mr Breeding's general practitioner considers, when treated as it currently is, would not render him unfit to hold a licence.[53] The report of Dr Branson, who acknowledges he is not a specialist on the condition, notes the effects of the condition as including 'fatigue, lethargy and potentially some digestive problems. Some neurological problems are reported in advanced cases ... although I understand that Mr Breeding has not suffered from this problem.'[54] The Delegate's submission to the Tribunal is that this condition was not relied upon in the cancellation of the licence.[55] Mr Breeding considers that the illness caused symptoms that brought him to police's attention; police reject that as a minimisation of responsibility.
5. I do not consider that Mr Breeding is medically unfit to hold a licence and this is consistent with the Delegate's decision.

Matters which, if established, mean that the applicant 'may be taken not to be a fit and proper person' - s 7(3)(d) and (c) and s 7(5)

1. Section 7(3) contains a list of circumstances in which a person may be taken not to be a fit and proper person. The phrase "may be taken not to be fit and proper" provides guidance but is not determinative of whether a person is fit and proper. Other circumstances may diminish or supplement the significance of the circumstance as part of a broader set of matters that the decision-maker relies upon to form a final position as to an applicant's fitness and propriety.
2. Several items in s 7(3) refer to an applicant's history of offending. It is therefore necessary to consider how Mr Breeding's history of offending is relevant to his application.
3. Mr Breeding has been found guilty of two offences. His drink driving conviction for driving conduct in November 2002 is not relevant to his fitness and propriety for a firearms licence as a stand-alone offence. The second offence arose out of incident 35 on 28 November 2014 in which police state that they attended at Mr Breeding's house at his parents' request.[56] There was a suggestion, the source of which is not clear, that Mr Breeding had made threats of suicide. Police state that they saw him inside the house wielding a knife and that he proceeded to barricade himself inside, shouting obscenities at them.
4. It is a significant event for the purposes of this decision. It occurred several months after the previous revocation in 2014. It was closely followed by another incident in which Mr Breeding called the Adelaide Police Station many times over a short period to complain about his treatment the day before.[57] Mr Breeding remains adamant that he did not commit the offence of resist arrest, though he pleaded guilty to it.
5. Mr Breeding's written submission on this event was as follows:

Please be advised the situation at my house on 28th November 2014 was not a siege because I was unarmed meaning I had no weapons. I do not believe me not coming out of my house and putting a small wooden table in front of a door a siege. I did not require police assistance so I did not come out I advised police I was fine but they would not leave my residence just causing a nuisance and using the mental health act as an excuse to attack me and fabricate siteings of weapons. A siege is when someone has a weapon and intends to cause harm to others or themselves I had neither intention and I did not call police to my house or say I was going to take pills and achol to suicide. Police should of left my house as I requested and all would of been fine.[58]

Approximately an hour and a half after police arrival you opened the front door abusing police further. You stepped out onto the porch, with your left hand behind your back, holding a dark cylindrical object, which officers believed to be an extendable baton. You were directed to stand still and show police your hands, which you ignored and then stepped towards police. You were again directed to stand still and show police your hands, which you ignored again and again stepped towards police. The officer closest to you took a step backwards, however you kept following police until you were about a metre away. Police pointed an Electronic Control Device at you, and you were told to drop the weapon. You raised your hands in the air, dropping a black object behind you which was a metal gas strut from the front door screen door. An officer approached you to arrest you. You resisted, trying to flee through the front yard. Four officers restrained you. You resisted and were aggressive towards police. You were handcuffed, but continued to resist police....[59]

1. The incident ended with Mr Breeding being restrained by police and ambulance officers and detained and taken to the Royal Adelaide Hospital under the Mental Health Act and charged with resisting arrest, in relation to which he subsequently pleaded guilty.
2. This offence triggers s 7(3)(d) which provides that a person who has been found guilty of a prescribed offence may be taken not to be fit and proper. The offence to which Mr Breeding pleaded guilty was s 6(2) of the Summary Offences Act. This describes the offence of hindering or resisting a police officer in the execution of the officer's duty and is a prescribed offence under Schedule 2 of the Firearms Regulations 2017. This is a basis upon which Mr Breeding 'may be taken' not to be fit and proper.
3. Section 7(3)(c) provides that a person may be taken not to be fit and proper if the person has been found guilty of an offence involving actual or threatened violence. The same event may enliven this provision.
4. It falls to be considered whether the words in the statute "an offence involving actual or threatened violence" require the offence to be characterised or the conduct. The use of the word "involving" indicates the latter. Parliament could have used the term "offence of violence" but have not.
5. Mr Breeding denies wielding the strut, denies resisting arrest and denies being abusive, but subsequently pleaded guilty to resist arrest "to avoid the massive expense of a trial".[60] He also submitted a one-page document[61] which purports to corroborate Mr Breeding's allegations about the matter. However, as it is a statement of a person, Mr Matarazzo, who is reporting a statement allegedly made by a police officer to him several months after the event (incident 35 - the gas strut) , I cannot place much if any weight upon it. Even taking into account the less stringent procedural rules of the Tribunal, this evidence would need to be provided more directly for it to enable me to consider the proposition that Mr Breeding seeks the Tribunal to accept, namely that a police officer was lying about the offence in relation to which Mr Breeding subsequently pleaded guilty.
6. The Tribunal accepts the police version of events on the balance of probabilities and finds that this was an offence involving threatened violence and that based on such a finding, Mr Breeding may be taken not to be fit and proper for the purpose of s 7(1)(c) or (d).
7. The Delegate did not rely upon this finding of guilt as a basis alone, but as part of a pattern of conduct that made Mr Breeding not a fit and proper person.[62] Accordingly it is necessary to consider whether other grounds for the finding are made out.

Whether the applicant may be taken not to be fit and proper if they have made a threat of violence ... or stated the intention to acquire ... any firearm for an unauthorised purpose - s 7(5)

1. There are several incidents during which police allege that Mr Breeding threatened violence. One was an incident in February 1997[63] when police attended in response to calls from Mr Breeding's parents and Mr Breeding was brandishing a knife. He was 15 years old. It would appear here that the threat, if it occurred, may have occurred by Mr Breeding telling his parents that he would use it on police if they were called or if they arrived, because the police did not witness the threat directly.[64] I do not consider that there is sufficient evidence to make a finding that a threat was made.
2. Incident 13, in March 2012, relates to an incident between Mr Breeding and another man in his neighbourhood, Mr Silvestri. Mr Breeding attended at Norwood Police Station to complain about Mr Silvestri's harassment of him. During Mr Breeding's account to police, which was described as continuously changing and 'did not seem entirely truthful', police report that Mr Breeding stated that Silvestri should 'pull his head in one day or he may have it shot off..". I do not consider this to be sufficiently direct to constitute a threat. If said, it was said by Mr Breeding at a police station to show how imprudent Mr Breeding thought Mr Silvestri's behaviour was. It is evident from the Police Incident Report that police were more concerned about Mr Breeding's behaviour than the allegation being made about Mr Silvestri, because of the way in which it was conveyed.
3. The Delegate's submissions also made references to two occasions (incidents 29 and 31) on which Mr Breeding had allegedly referred to, or picked up, a bow.[65] However, having reviewed the police incident reports of these incidents I do not consider that these events amounted to threats.
4. It has not been established that Mr Breeding made threats of violence that enliven this part of s 7(5).
5. The Delegate also submitted that incident 13 on 26 March 2012 in which Mr Breeding was reported as stating to police that Mr Silvestri should 'pull his head in" or one day he may have it shot off with a "12 gauge shotgun".[66] The verb used in the Police Incident Report is that Breeding was "suggesting" the above rather than "threatening". Mr Breeding's response is that he told police that 'something needs to be done' about the man with whom he had argued, and "if he done this to a bikie that had a shotgun he would be in trouble and I did not mean that I would use a shotgun. I did not say he better pull his head in or one day it would be shot off".[67]
6. On balance, whilst I am satisfied that the police incident report constitutes a more accurate contemporaneous account of the events, I am not satisfied that this constitutes a threat. However, it is relevant to the question of whether there is a risk of a threat of harm. If there was not an actual threat, Mr Breeding's behaviour was very close to it.
7. Further incidents that may be considered as threats occurred when Mr Breeding rang police on 31 occasions over a three hour period on 23 June 2013 (incident 31). According to police, during these calls to eight different operators, Mr Breeding made reference to his bow and arrows at his home, and made an unspecified threat against a transit officer, and stated that he would use the bow and arrows against police if they approached his home.[68] Mr Breeding was not ultimately charged in relation to any of these threats. His response to the Tribunal to this allegation was:

I had been drinking beer at the time I was upset that police where ruining my life so much firstly they ruined my favourite sport shooting and hunting then they comes around my house and call me a flasher. My girlfriend at the time found out about the police attendance with the flashing allegations she said I don't want to see you again

The police were ruining everything for me even getting my girlfriend to leave me. I was so angry with police and I was a bit intoxicated and I called the police and gave them a piece of my mind something I would not of done if I was sober and something I would not do again.

Regarding this report I did not mention threats towards police and I did not say I would use a bow and arrow on police this is the police not telling the truth. I do not think I called 31 times why would I call that many times for?[69]

I consider that these allegations of threats are insufficiently established to be accepted as such, but they are relevant to the assessing the risk of Mr Breeding using a firearm to threaten in the future which is discussed further below at paragraph 75.

Stated the intention ... to acquire or use a ... firearm for an unauthorised purpose

1. The Delegate submitted that incident 13 in March 2012 demonstrated that Mr Breeding stated an intention to acquire a firearm for an unauthorised purpose, namely self-defence. Police attended at Mr Breeding's premises to check that he had his firearms properly stored. It appears that he did have them properly stored but during the course of the visit, police identified a toy pistol which they seized to consider its status. On Mr Breeding's account[70], the police were insulting to him during that visit, calling him a "dickhead". The following day, Mr Breeding went to Adelaide Police Station to complain about the seizure. During this attendance, police allege that Mr Breeding stated "How will I protect myself now?" in response to a refusal to return the toy pistol to him. Mr Breeding denies saying these words. It is not necessary for me to find whether those words were uttered as they do not sufficiently evidence an intention to acquire a firearm for an unauthorised purpose. Nevertheless, the interactions over two days are illuminating as to Mr Breeding's dogged approach to things. Having had (on his account) an unpleasant interaction with police at his home the day before, he reflected and then pressed what he considered were his rights by attending the police station to complain and attempting to achieve the return of the seized item.
2. Incident 33 is also to be considered as to whether it has been established that Mr Breeding "stated the intention, or sought, to acquire or use a prescribed firearm or any firearm for an unauthorised purpose". Mr Breeding was in the police cells at Port Adelaide on 4 July 2013, having been arrested for the nuisance calls to police described above. Police allege that whilst in the cells Mr Breeding used the words "You fucking pigs can't stop me doing anything" in the context of the non-return of his licence and stated that it "would not stop him anyway as he could get unlicensed firearms easily enough".[71] Mr Breeding submitted in response dated 19 August 2017:

the police are fabricating this report I never stated I could get unlicensed firearms easily enough I would not say that to the police. ....I was not abusive at all I just asked the police can I go now. I never stated to the police you pigs can't stop me doing anything. I did not display obnoxious attitude or relentless abuse of SAPOL staff. The police station has recording audio at all times why don't the police prove what they say? It is because it was never said in the first place by me they just like to incriminate me as much as they can to make me look bad so I can't get firearms.[72]

1. I prefer the police version as a more accurate account of the words stated but I consider that the words do not go far enough to constitute the statement of an intention to acquire firearms for an unauthorised purpose. Again, whilst the words may be short of what is required for the purposes of s 7(5), they are significant in relation to the question of a risk of a threat of violence for the purposes of s 7(3).

Other matters to be taken into account - s 7(4)

1. Section 7(4) directs the decision-maker to take into account certain matters, and permits other matters as follows:

(4) In deciding whether a person is a fit and proper person for a purpose under this Act -

(a) regard may be had to the reputation, honesty and integrity of the person, close associates of the person and any people with whom the person associates; and

(i) any risk of the person using a firearm for an unlawful purpose; or

(ii) any risk of the person using a firearm to harm himself or herself; or

(iii) any risk that the person will cause injury or harm to another by the use or threatened use of a firearm; or

(iv) any risk of the person failing to exercise continuous and responsible control over a firearm,

and, in that connection, regard may be had to the person's past behaviour, instability, intemperate habits, way of living or domestic circumstances.

1. No evidence was advanced by Mr Breeding to assist the Tribunal to take into account any matters relating to his reputation, honesty or integrity for the purposes of s 7(4)(a). There was no suggestion that Mr Breeding's associations contribute adversely to the Delegate's view of his fitness and propriety.
2. The Tribunal is required by s 7(4)(b) to consider risk i.e. future behaviour. I must take account of any risk of Mr Breeding using a firearm for an unlawful purpose, or risk of him using a firearm to harm himself, or causing injury or harm to another by the use or threatened use of a firearm, or failing to exercise continuous and responsible control over a firearm. Parliament has seen fit to employ the phrase "any risk" rather than other phrases that might connote a measuring exercise.
3. In determining whether a risk exists, the Delegate, and the Tribunal, may take into account the person's past behaviour, instability, intemperate habits, way of living or domestic circumstances.
4. The Delegate's counsel, Mr Withers, invited the Tribunal to find that there is a risk that Mr Breeding will, if granted a licence, use a firearm to harm himself. This is based on several references in the reports of the various incidents of Mr Breeding demonstrating 'suicidal ideation'.[73] The most significant of these is a report by an unidentified person to a mental health phone service in 2011 that the person had had some dealings with Mr Breeding and Mr Breeding had expressed suicidal intent.[74] However, the evidence is not sufficiently direct to form a view that a risk of suicide exists.
5. On the other hand, I consider that the number and type of incident in which Mr Breeding has been involved over the past decade reasonably lead to the conclusion that Mr Breeding is at risk of causing injury or harm to someone from the use or threatened use of a firearm. This conclusion is reached from the aggressive loss of control he sometimes suffers when he considers he has been wronged, the frequency with which he is in conflict with family, acquaintances, colleagues and police, the past use of weapons and threats, and his refusal to acknowledge the impact of his actions on others.
6. I consider that incident 12 in which Mr Breeding made statements about Mr Silvestri getting his head shot off, combined with other behaviour and statements including incidents 14, 22, 29 and 33, demonstrate that there is a risk that Mr Breeding would, if provoked, cause harm to another person by threatening to use a firearm. That person might be one of his parents, a police officer, or other acquaintance or stranger with whom he is in conflict. I have had regard to this in concluding that Mr Breeding is not a fit and proper person for the purposes of the Act.

1. It is necessary to return to the issues of the "circumstances" in s 7(2).
2. Section 7(2) provides that:

A person who has a physical or mental illness, condition or disorder, or in relation to whom other circumstances exist, that would make it unsafe for him or her to possess a firearm or ammunition is not a fit and proper person for a purpose under this Act. (Emphasis added)

1. I do not consider that there is any evidence that is different from that which has been relied on to form the view that Mr Breeding is at risk of harming another by the use or threatened use of a firearm, that might be relevant to the question of whether or not it would be unsafe for him to possess one. For the same reasons, I consider that the circumstances of his ongoing anger directed at police, and his inability or unwillingness to accept the contribution he makes to the altercations he finds himself in, are such as to make it unsafe for him to be granted a licence to possess a firearm. These might be best summed up by the observations in the 2012 medical report of Dr Branson.[75] Whilst Mr Breeding does not suffer a psychiatric condition his personality style is a relevant 'circumstance'.

1. Section 7(7) provides that the grounds upon which a person may be taken not to be a fit and proper person are not exhaustively described in the section. This echoes the common law position that the purpose of the term "is to give the widest scope for judgement and indeed for rejection."[76]
2. The Delegate's submission, through counsel, that Mr Breeding has a lack of insight,[77] fails to appreciate the wrongfulness of his behaviour and accept responsibility for his actions,[78] minimises his role in altercations[79] and places blame on others,[80] are supported by Mr Breeding's submissions which are replete with denials and counter-allegations such as:

"... the police involved in this report have broken the law by fabricating everything they alleged against me."[81]

"the police stood about 10 meters from me and as a practical joke I did a Kung Fu stance the police then ran at me and arrested me..."[82]

(in response to the allegation of calling SAPOL 31 times) "I did not intend to cause harassment I just wanted the police to see reason."[83]

"I find these police reports rather trivial between my parents and I. Life was so difficult for me living with anaemia and my hair loss condition. I think some sympathy for my condition I had would be more appropriate."[84]

1. There are examples of acknowledgement of wrong-doing:

"I learnt my lesson from this and that is to never drink and drive again. I have had no other offences such like this since."[85]

1. Counsel for the Delegate submitted that the Delegate's refusal was based on a "demonstrated pattern of behaviour which, if he were permitted to possess firearms, would jeopardise public safety". The Delegate submits that this pattern demonstrates that Mr Breeding is "prone to engage in conflict with police and others with whom he has contact... involves threats of violence, agitation and aggression, with obsessional features and little insight."
2. The submission has force. During the "Kung Fu" incident, for example, the police's account describes Mr Breeding's behaviour when police arrived at the request of Mr Breeding's father, as including Mr Breeding shouting and swearing, clenching his fits and calling the police "fucking idiots" and demanding that they arrest his father.[86] Mr Breeding later minimises this behaviour and describes the incident as if police have overreacted to his joke. On balance I accept the police version of events, described by two officers, and on that basis Mr Breeding shows no insight into the effect and consequences of his aggression on this occasion. This is but one example; many of the accounts recorded in the police's system by different officers contain descriptions such as "very irrational and disturbed".[87]
3. When it became apparent to Mr Breeding that the 2014 incident (incident 35) was relied upon by the Delegate in refusing his licence, he wrote a three page document 'to whom it may concern' dated 9 February 2017 which included the following:

The police man who made this complaint against me is a pathological liar he fabricated the version of events totally bending the truth in every way he was able to. ...

I have found previous suspensions of my firearms licence ridiculous... the suspension was ridiculous because I had not done anything wrong....

It appears to me police are not rooted in reality and this is why I have had all this trouble with police. Your recent refusal of my firearm application was full of fabricated lies you say I have been witnessed yelling at people I recall this was not the case on what you described to me...'

You say I said you pigs can't stop me doing anything and things like I could access illegal firearms with ease? I did not say that police stations have recording devices especially at Port Adelaide police station where this allegation stems from? You have no recording of this! This has been fabricated to ruin my character as a person.

1. Mr Breeding asserted that he is a fit and proper person when asked. I have considered Mr Breeding's submissions in a 5 page typed document dated 6 August 2017 within the Second Bundle, which includes the following statements:

I am an honest law abiding person that is polite to people and I do not cause trouble in any way.

I am very upset with police in the past for issuing me with unfair suspensions of my firearms licence...

I found this police firearm suspension process very unfair because I required my firearms for using at my gun club and shooting on a friends property hunting foxes in the Adelaide Hills which I really enjoyed doing

I believe if it was not for pernicious anaemia I would not have come to the attention of police and I would have never lost my firearms licence

I disagree with police saying I would jeopardise public safety if I owned firearms because I would never hurt any person. I am not a violent man I am a good person that is responsible.

I am so disappointed in South Australian Police for their dishonesty and criminal conduct they have demonstrated to me including destroying the bolts to several of my firearms so I was unable to sell my firearms when police cancelled my firearms licence.[88]

I have suffered sadness for the loss of my Firearms licence and this has caused me bad feelings towards police.[89]

1. Fitness and propriety are characteristics capable of change over time. Courts have acknowledged that with the passage of time, past conduct as a predictor of future conduct may become less compelling.[90]
2. The events giving rise to the "Kung Fu" incident occurred in 2014. I do not consider that this is sufficient time to negate their significance in this decision-making process. I note that there has been no incident since that date. The frequency of the interactions prior to 2014, and the lengthy history of the conduct, however, will require some further period of time if they are to diminish in significance to the Mr Breeding's fitness to hold a licence. The totality of the evidence indicates that Mr Breeding's hot-headedness was not confined to exchanges with police but extended to others including his parents, colleagues and strangers.
3. Some evidence of his volatility was evident from Mr Breeding's oral evidence. When he answered questions put to him by counsel for the Registrar it was in a hostile and exasperated manner.

1. Under the 1977 Act, against which the Delegate assessed the application, the Registrar may only refuse a licence if, amongst other things, he or she is of the opinion that that to grant it would be contrary to the public interest. The 2017 Act has altered that ground by requiring that the Registrar may only refuse if he or she is not satisfied that to grant the licence would be in the public interest. This is consistent with the scheme that emphasises the concept of firearms possession as a privilege, as set out in the principles and objects in s 3 that were not present in the 1977 Act. In other words, the test has become more difficult for an applicant to meet since the application was refused. No submission was put as to why it would be in the public interest to grant this licence. I infer from Mr Breeding's submissions that the pleasure he takes in hunting, and perhaps in participating in a social activity, constitutes that public interest. Against that, I balance the interest that the public has in having the risk of harm from the misuse of firearms minimised by ensuring that those who might misuse them are not granted licences.
2. I am not satisfied that it would be in the public interest to grant this licence.
3. In the event that I am wrong in relation to the issue of the applicability of the 2015 Act to the question of Mr Breeding's eligibility, I have turned my mind the 1977 Act eligibility criteria which substantially overlap the criteria in the 2015 Act. Mr Breeding would not be fit and proper under those criteria based on the findings I have made.

1. I find that the correct and preferable decision is that the Delegate's decision be affirmed. Mr Breeding's past behaviour, and his current attitude to that past behaviour, lead to the conclusion that he is not eligible to be granted a firearms licence when assessed against the criteria in the legislation.
2. The Tribunal upholds the refusal.

[1] Contained in Volume 2 of the documents submitted by the Delegate pursuant to s 35 of the SACAT Act and Rule 35 of the SACAT Rules ("Vol 2") at p 6.

[2] Traill v McRae [2002] FCAFC 235 (16 August 2002).

[8] Only pages 1, 5 and 7 letter are included in Volume 2 as submitted to the Tribunal.

[46] Respondent's Outline of Argument para 38.

[48] Police v Losapio [2007] SASC 112 [21].

[50] Psychiatric Report of Dr Patrick Flynn, Vol 2 p157.

[51] Psychiatric Report of Dr Chris Branson Vol 2, p162.

[52] Letter of Dr Vasilios Tsakalos Vol 2, p142.

[53] Letter of Dr Vasilios Tsakalos Vol 2, p165.

[54] Psychiatric Report of Dr Chris Branson Vol 2, p162.

[55] Respondent's Outline of Argument, p 15 [53].

[56] Item 35 in the list at paragraph 27.

[58] Handwritten submissions of Mr Breeding Vol 2 p 114.

[61] One page document tendered at the hearing dated 20 September 2017.

[62] Respondent's Outline of Argument, 11 [37].

[65] Vol 2 pp 129, 88; Respondent's Outline of Argument, p 10.

[70] First Bundle, p 18; Volume 2 p 61.

[72] Applicant Submission, 19 August 2017, 1.

[73] For example, incident 4 in which Mr Breeding expressed suicidal intentions when being attended to by police and ambulance officers after being assaulted.

[74] This led to the welfare check - Incident 10.

[76] Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 156 Dixon CJ and McTiernan and Webb JJ.

[77] Respondent's Outline of Argument, p 12 [39].

[81] Responses to Police Ancillary Reports', Applicant's Submissions, 17 August 2017, document 1, p 2.

[82] Ibid, 14 August 2017, document 3, p 4.

[83] Ibid, 16 August 2017, document 9, p 11.

[84] Ibid, 17 August 2017, document 13, p 20.

[85] Ibid, 15 August 2017, document 6, p 7.

[88] Applicant's Outline of Argument, 6 August 2017 pp. 1-5.

[89] Second Bundle, dated 9 August 2017.

[90] Davies v Registrar of Firearms [2005] SASC 149 Gray J unreported 21 April 2005; Police v Losapio [2007] SASC 112 David J 2 April 2007.